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“Discovery concerning discovery” permitted to make searches more thorough

In Ruiz-Bueno v. Scott, No. 12-cv-0809 (S.D. Ohio Nov. 15, 2013), the court granted a motion to compel the defendants to answer an interrogatory that requested the details of their electronic document collection efforts. The defendants argued that “discovery about discovery” should not be permitted and their document collection efforts were privileged. The court disagreed. It held that parties should ordinarily cooperate on developing search protocols pursuant to Fed. R. Civ. P. 26(f). The court explained that, as part of that process, litigants would ordinarily be required “to state explicitly how [their] search was constructed or organized,” and communicate to the opposing party “suggestions about making [a] search more thorough.” The court rejected the notion that sharing such information would constitute “an intrusion into privileged areas or . . . less than zealous advocacy” for clients. Rather, “discussing how to go about searching for and producing ESI does not ordinarily or necessarily entail revealing confidential client communications.” The court granted the motion to compel, primarily because “defendants were less than forthcoming with information needed to make further discussion of the issue [in] a collaborative rather than contrarian process.”